Opinion
2015QN011573
11-04-2015
The People of the State of New York Reza Mobarhan, Defendant.
Attorney for Defendant: Martin D. Kane, Esq. Attorney for the People: Assistant District Attorney Diana Schioppi
Attorney for Defendant:
Martin D. Kane, Esq.
Attorney for the People:
Assistant District Attorney Diana Schioppi
Ernest F. Hart, J.
The defendant is charged with (1) two counts of Endangering the Welfare of a Child and (2) two counts of Harassment in the Second Degree.
PL 260.10 (1) provides, in relevant part:
A person is guilty of endangering the welfare of a child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old ...
Penal Law § 240.26 (1) provides, in relevant part:
A person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person:
1. He or she strikes, shoves, kicks or subjects another person to physical contact, or attempts or threatens to do the same.
The defendant, in an omnibus motion, seeks (1) Dismissal of the Charges for Facial
Insufficiency (2) Motion to Compel a Bill of Particulars and Discovery and (3) Reservation of Rights. The People filed a response to the defense motion. On August 5, 2015 and August 6, 2016, respectively, the defendant filed and served a reply to the People's response. On August 12, 2015, the court directed the People to file a sur-reply to the defendant's reply by September 9, 2015. The People filed their response with the court on September 30, 2015.
The defendant's omnibus motion is decided as follows:
DISMISSAL OF THE CHARGES FOR FACIAL INSUFFICIENCY
The defendant moves to dismiss the charges for facial insufficiency (CPL 170.30 (1)[a]; 170.35). A legally sufficient information must contain non-hearsay allegations establishing, if true, every element of the offense charged and the defendant's commission thereof. An information which fails to satisfy these requirements is jurisdictionally defective. CPL 100.40 (1); 100.15 (3). See People v. Alejandro, 70 NY2d 133 (1987); People v. Dumas, 68 NY2d 729 (1986).
The accusatory instrument provides, in relevant part,
Deponent states that he is informed by the complainant, [N. M.], age 16, that at the above mentioned time, date and place of occurrence, [Razi School], the defendant, Reza Mobarhan, who was the complainant's teacher, touched her body in various places on numerous occasions throughout the abovementioned period of time [between February 1, 2014 and February 17, 2015] without the complainant's consent, to wit: the defendant placed his hand on the complainant's inner thigh kissed her on the cheek, and called the complainant's personal phone and told her that he loved her.
Deponent further states that he is informed by the complainant that the abovementioned actions of the defendant caused her substantial annoyance and alarm.
Deponent further states that he is informed by complainant, [R. H.], age 16, that at the abovementioned time, date and place of occurrence, the defendant, Reza Mobarhan, who was the complainant's teacher, engaged in unwanted conduct with the complainant without the complainant's consent, to wit: the defendant kissed the complainant's forehead, and repeatedly told her that she is beautiful and that he loves her.
Deponent further states that he is informed by the complainant that the abovementioned actions of the defendant caused her substantial annoyance and alarm.
Arguments
In his initial motion, the defendant argues that the accusatory instrument is facially insufficient because it contains the allegation that the offenses were committed for a period of over one year and that it would have been "impossible" to commit such acts inside of a school. He further asserts that the conduct alleged was innocent and not likely to be injurious to the physical, mental or moral welfare of the complainants. In their response, the People argue that the alleged conduct cannot be characterized as "innocent" and that the allegations are sufficient to support a finding that such conduct was "likely to be injurious to the physical, mental or moral welfare of a child." PL 260.10 (1). In his reply to the People's response, the defendant asserts that the People made no attempt to particularize or approximate the dates and times of the alleged conduct, that the offenses could not have been committed inside the school because cell phone usage is not permitted in the school, that the People should have obtained the telephone records of complainant, N. M., in order to provide the defense with the dates and times of the alleged calls made to her by him and that the People have failed to indicate which alleged conduct supports the Endangering the Welfare of a Child charges and which alleged conduct supports the Harassment in the Second Degree charges.
Discussion
An accusatory instrument must provide the defendant "with fair notice of the nature of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer the charges and to prepare an adequate defense." People v. Keindl, 68 NY2d 410, 416 (1986). Further, the allegations contained therein must be sufficiently specific to allow the accused, upon conviction, "to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense." Id. "[The] prohibitions against excessive time spans and duplicity generally apply only to offenses that are punishable by the performance of a single act ... [.] ... By contrast, some offenses may, by definition, be committed by multiple acts. These offenses, which are characterized as continuing offenses, may allege time spans that might otherwise be considered unreasonably excessive." People v. Evangelista, 1 Misc 3d 873 (Bronx Co. Crim. Ct. 2003). "Endangering the welfare of a child ... is a crime that by its nature may be committed either by one act or multiple acts and readily permits characterization as a continuing offense over a period of time." Keindl at 421-422. Inasmuch as the offense of Endangering the Welfare of a Child is charged as a continuing offense in the instant case, the dates alleged need not be as specific as required when a single, discrete offense is charged, [See People v. Sims, 129 AD3d 1509 (4th Dept. 2015); People v. Bradberry, 131 AD3d 800 (4th Dept. 2015); People v. Errington, 121 AD3d 1553 (4th Dept. 2014); People v. Kirk, 96 AD3d 1354 (4th Dept. 2012); People v. Devane, 78 AD3d 1586 (4th Dept. 2010); People v. Muhina, 66 AD3d 1397 (4th Dept. 2009); People v. Green, 17 AD3d 1076 (4th Dept. 2005); Evangelista, supra] and the time interval alleged during which the conduct occurred may be as lengthy as two years. See Keindl at 421-422; Sims, supra; Green, supra.
In the instant matter, the defendant is alleged to have fondled one of his 16 year old students several times on numerous occasions, including placing his hand on her inner thigh and kissing her cheek. The complaint also alleges that the defendant kissed the other 16 year old complainant's forehead, repeatedly telling her she was beautiful and that he loved her. Taking these allegations as true, a jury could easily find the defendant guilty of Endangering the Welfare of a Child [PL 260.10 (1)]. The court finds that the factual allegations support all elements of this offense as to each complainant for pleading purposes. See People v. Bartlett, 89 AD3d 1453 (4th Dept. 2011) [testimony that the defendant, pressed up against the victim's backside and rubbed her thigh supported his conviction for Endangering the Welfare of a Child]; People v. Lewis, 25 Misc 3d 1206 (A) (Kings Co. Crim. Ct. 2009) [allegations in support of the charges of Endangering the Welfare of a Child and Harassment in the Second Degree, that the defendant hugged the victim, touched her thigh and whispered in her ear, were found to be facially sufficient]. See also People v. Miller, 19 Misc 3d 457 (Kings Co. Crim. Ct. 2008); People v. Valentin, 17 Misc 3d 1132 (A) (Kings Co. Crim. Ct. 2007); People v. Ostrin, 8 Misc 3d 1020 (A) (Kings Co. Crim. Ct. 2005). Additionally, this court does not find it was "impossible" for the acts alleged to have occurred within a school, particularly in light of the fact that the two complainants were students at the school and the defendant was their teacher at the time of the alleged conduct. As to the defendant's argument that the offenses could not have been committed inside the school because cell phone usage is not permitted in the school, that is an issue for trial. As to the defendant's argument that the People have failed to indicate which alleged conduct supports the Endangering the Welfare of a Child charges and which alleged conduct supports the Harassment in the Second Degree charges, the court finds that the facts alleged pertain to both charges.
As to the charge of Harassment in the Second Degree in relation to complainant N. M., it is alleged that the defendant "touched her body in various places on numerous occasions throughout the abovementioned period of time ... without the complainant's consent, to wit: the defendant placed his hand on the complainant's inner thigh [and] kissed her on the cheek." In connection with the above discussion, the offense of Harassment in the Second Degree is not a continuing crime. See People v. Reid, 28 Misc 3d 1231 (A) (Albany City Ct. 2010); People v. Gelin, 2002 WL 31962699 (Kings Co. Crim. Ct.). The one count charged in the instant case as to complainant N.M. encompasses at least two separate and discrete acts, rendering that count duplicitous. That count must therefore, be dismissed.
"When time is not an essential element of an offense, the [accusatory instrument] need not set forth the actual date of the crime charged. It must, however, set forth a time interval which is not so vast as to deny the defendant his constitutional right to be informed of the nature and cause of the accusation (citations omitted)." People v Watt, 192 AD2d 65, 68 (2nd Dept. 1993). The Court of Appeals has created "a set of criteria to be considered when making the necessary determinations pertinent to this distinct issue [whether sufficient specificity to adequately prepare a defense has been provided to a defendant] in cases in which the per se bar does not apply. The nonexclusive list of factors includes the length of the time span provided by the People and the knowledge the People possess or should acquire with reasonable diligence of the exact or approximate date or dates of the criminal conduct. Additionally, relevant factors include the age and intelligence of the victim and other witnesses; the nature of the offense or offenses, including whether they are likely to be discovered immediately and whether there is a criminal pattern; and all other surrounding circumstances (citations omitted)." People v Watt, 81 NY2d 772, 774-75 (1993).
The only allegation in support of the charge of Harassment in the Second Degree in relation to complainant R. H. is that the defendant, presumably once, "kissed [her] forehead," a single act. This charge is therefore, not duplicitous. As to both counts of Harassment in the Second Degree, the defendant is charged with acts committed over a thirteen month period. Other than the People's bare assertion that they have exercised reasonable diligence in attempting to narrow the time periods of the incidents, this court finds that this thirteen month period is unreasonable under the circumstances. The complainants in the instant matter were sixteen when the alleged acts occurred and the complainants should have been able to discern, "if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist them in narrowing the time spans alleged." Keindl at 420-421. See also People v. Aaron V., 48 AD3d 1200 (4th Dept. 2008); People v. Lapage, 18 Misc 3d 1133 (A) Essex Co. Ct. 2008).
The defendant's motion to dismiss the two counts of Endangering the Welfare of a Child is denied.
The defendant's motion to dismiss the two counts of Harassment in the Second Degree is granted. The court will, however, permit the People to cure the defects by filing a superseding information, a prosecutor's information or a bill of particulars within the appropriate statutory speedy time limits. See People v. Elliott , 41 Misc 3d 1228 (A) (NY Co. Crim. Ct. 2013); People v. Alston , 31 Misc 3d 1201 (A) (Kings Co. Crim. Ct. 2011); People v. Evangelista , 1 Misc 3d 873 (Bronx Co. Crim. Ct. 2003).
MOTION TO COMPEL A BILL OF PARTICULARS AND DISCOVERY
The defendant moves to compel a bill of particulars and discovery based on the People's failure to comply with his request for same. The defendant's motion to compel is denied as moot, as the People filed a response on July 28, 2015.
The People are reminded of their obligation under Brady v. Maryland, 373 U.S. 83 such that the defendant is afforded a meaningful opportunity to use the evidence. See, People v. Steadman, 82 NY2d 1 (1993).
RESERVATION OF RIGHTS
The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3). This opinion constitutes the decision and order of the Court. Dated: November 4, 2015__________________________ Kew Gardens, NYErnest F. Hart Judge of the Criminal Court